Protect The 1st has followed the Catholic Charities v. Wisconsin litigation for more than two years. After many ups and downs in a case that asks what constitutes an activity deemed sufficiently religious to merit a state religious exemption, the U.S. Supreme Court has agreed to rule on the controversy. Courts in Wisconsin have found that the Catholic Charities Bureau of Wisconsin does not qualify for a state religious exemption and must therefore contribute to the state’s unemployment system, instead of to a church-run system. Wisconsin courts base this conclusion on the flawed reasoning that Catholic Charities – which has provided aid to the disabled, the elderly, and the poor for over one hundred years – is not operated primarily for religious purposes because it provides services to people of all faiths. Never mind the fact that, quoting the Becket Fund, “[the] requirement to serve everyone in need comes directly from Catholic social teaching and advances the Church’s religious mission through the corporal works of mercy.” No activity violates the Establishment Clause more than one in which the government decides which religious practices qualify as religious, and hence protected, and which do not. Moreover, it’s simply bad policy to punish a group that offers free in-home health care, housing, and childcare services to people in need. Then there’s the floodgates ramifications; if it does indeed become the job of government to decide which religious practices are religious, then we well and truly have cast the Constitution to the wind. The Catholics suffer now, but many other religious groups may soon find themselves at the pointy end of a bureaucratic spear. Becket Fund senior counsel Eric Rassbach perhaps puts it best: “Wisconsin is trying to make sure no good deed goes unpunished. Penalizing Catholic Charities for serving Catholics and non-Catholics alike is ridiculous and wrong. We are confident the Supreme Court will reject the Wisconsin Supreme Court’s absurd ruling.” For more on the Catholic Charities case, you can read their certiorari petition here. Stay tuned for updates from Protect The 1st. A recent piece in the Duluth News Tribune argues that the Protect Reporters from Exploitive State Spying (PRESS) Act would effectively grant reporters special Brahman status, making them “immune to investigations by federal law enforcement, including grand juries” and allowing them “to withhold vital evidence of crimes, government corruption, and wrongdoings.” This argument is wrong on all counts. On the contrary, the PRESS Act is a necessary bulwark against egregious government snooping and surveillance, as well as increasingly weaponized judicial (and extrajudicial) harassment that undermines the sanctity of constitutionally protected newsgathering efforts. The PRESS Act has two major components. First, it would prohibit federal authorities from spying on journalists through collection of their phone and email records. Second, it would impose strict limitations on when the government can require a reporter to give up their sources. The bill makes clear that “[n]othing in this act shall be construed to … prevent the federal government from pursuing an investigation of a journalist or organization that is … suspected of committing a crime ...” Further, it contains specifically enumerated exemptions for information necessary to prevent imminent violence or acts of terrorism. The article’s author suggests that the PRESS Act would somehow grant reporters greater First Amendment protections than other Americans. He fails to recognize the many other situations in which communications are legally recognized as privileged – such as those between husband and wife, patient and therapist, or attorney and client. Enshrining such a right for journalists and their sources is a logical policy prescription designed to protect newsgathering, which is our primary means of directing the disinfecting rays of sunlight towards government corruption and malfeasance. Such a shield is in harmony with the aims of our Founders, who made sure the First Amendment had pride of place in the Bill of Rights. Forty-nine states and the District of Columbia already have some version of a press shield law. Why, then, is a federal law needed? Look no further than a congressional report on the PRESS Act, which documents numerous instances of improper attacks against journalists by recent presidential administrations. On at least a dozen occasions since 1990, journalists have been threatened with jail or other harsh punishments for refusing to reveal their sources. Attorney General Merrick Garland announced in 2022 that the Department of Justice would no longer paw through reporters’ phone records in the event of leaks – but it’s an exception that very much proves the rule. Government abuse has gone too far – and could go much further in the future. Consider Catherine Herridge, the courageous former Fox News reporter who is facing jail time and potential fines of $800/day for refusing to give up her sources. Her stories embarrassed the government but also highlighted some very real potential national security risks surrounding a school with ties to the Chinese Communist Party. We’re better off for having this information, and she shouldn’t be punished for doing her job. One factor often lost amidst all this debate about the PRESS Act – the government can absolutely still punish leakers. The Obama administration harassed reporter James Risen of the New York Times for years after he wrote about a U.S.-backed espionage effort in Iran. Despite Risen’s refusal to give up his source, the government eventually found the leaker and threw him in jail anyway. Government surveillance and intimidation of reporters threatens to chill constitutionally protected newsgathering efforts by spooking sources and discouraging journalists on shoestring budgets. We need the PRESS Act to protect against increasing constitutionally illiterate and illegal acts by government officials against reporters. The PRESS Act has sailed through the U.S. House of Representatives twice. We urge the members of the Senate to likewise pass the PRESS Act. And if that doesn’t happen this year – we urge President-elect Donald Trump to support passage of the PRESS Act in the 118th Congress. The PRESS Act is a natural for President-elect Trump’s support. We recently covered the plight of Sam Brownback – former Kansas governor, U.S. Senator, and ambassador – who learned that the Chase Bank account for the non-profit he heads, the National Committee for Religious Freedom, had been closed with no explanation. In a lengthy back-and-forth with Chase Bank, Brownback learned that he had been defined in regulatory filings as a “politically exposed person.” Allysia Finley in The Wall Street Journal explains the mechanisms behind these actions. She covers the widespread and growing practice of federal agencies’ use of the Bank Secrecy Act to surveil and punish the speech of law-abiding but politically disfavored groups through “debanking.” These Orwellian acts don’t originate with the banks. The banks themselves face penalties that can go into the billions of dollars if they fail to close an account for a customer who is the target of numerous “Suspicious Activity Reports” (SARs), which flag them as “high risk.” Last year, banks filed 4.6 million SARS. Who knows how many customers were debanked as a result? Victims include former First Lady Melania Trump, and groups targeted by some in government such as firearms dealers, payday lenders, and pawn shops. Now the provision has blocked the Blockchain Association, a trade group for the cryptocurrency industry. Barney Frank, a former Chair of the House Financial Services Committee, says that the FDIC seizes banks “to send a message to get people away from crypto.” Think about that for a moment. The banks were forced not to go after crypto accounts, some of which admittedly could be sketchy, but to go after a trade association (“the collective voice of the crypto industry”) that exercises its First Amendment right to petition the government to argue for pro-crypto legislation. Unraveling the practice of silencing people and organizations by snapping their accounts shut should be high on the list for reform by the incoming Trump administration and the next Congress. You don’t have to be in the bag for one party or another to see that media outlets are taking on the partisan tone of newspapers reminiscent of the vitriol of the early American Republic. CNN and Fox News are at the far latitudes of different hemispheres and Newsmax and MSNBC are the North and South poles. Roland Fryer, a Harvard University professor of economics, in Monday’s Wall Street Journal writes that the economic incentives of a fragmented media environment make it unlikely that we will see a return to objective journalism any time soon. “My hunch is that it will get worse before it gets better,” Fryer wrote. “I am skeptical that there is enough demand for objectivity and believe there are powerful economic forces pushing media outlets to give audiences the red meat they desire.” All answers to this conundrum have so far failed. For example, some promote subsidized journalism as a way to ensure clear-eyed objectivity. But a close reading of subsidized ventures invariably reveals they skew to the left- or right-leaning predilections of their billionaire donors. We should remember that one reason early American newspapers were so biased is that they often received lucrative printing contracts when their favored political party won an election. Out of frustration some hold up the heavy-handed speech codes of Canada, the United Kingdom, and the European Union as a way forward. But, as we saw in the censorship of the Covid “lab-leak theory” – now held by the FBI as probably true – no one is smart enough to declare what is disinformation and what is mere information that belongs in the national debate. Some look to President-elect Trump’s successful lawsuit against ABC for anchor George Stephanopoulos’ inaccurate statement that Donald Trump had been held “liable for rape by a jury.” ABC’s admission of error resulted in a $15 million settlement by the news organization to the Trump presidential library. This defamation case is cheered by some on the right as a sign that media bias can be addressed by aggressive application of libel law. This outcome certainly offers a new precedent that widens the boundaries of a public figure’s ability to win a defamation suit. Yet the statement in question was a limited misstatement of fact from a professional news organization, placing it arguably within the boundaries for public figures set by the U.S. Supreme Court in New York Times v. Sullivan. Most media bias, right or left, is not like that. Bias is less about how a story is reported, and more about which stories are selected. Thus CNN focuses on anonymous reports of Defense nominee Peter Hegseth’s alleged peccadillos, while Fox News focuses on heinous crimes committed by illegal aliens. So if subsidized journalism, anti-“disinformation” campaigns by a consortium of government and media, and libel law will not guarantee objective journalism, what can we do? We should begin by accepting there is no getting around the need to respect that the First Amendment gives media outlets the right to report in a biased fashion if they so choose. Even biased reporting fulfills the right of readers, watchers, and listeners to receive available reporting that aligns with their own biases. This is decidedly suboptimal. But if the alternative is to put some government functionary or faceless executive, or trial lawyer in charge of determining truth for everyone, we will be even worse off. Fryer is right that media outlets pander to their audiences. The only way we’ve found to achieve balance is to skim The New York Times and Breitbart, CNN and Fox News, and then use our brains to read between the lines. Marc Andreessen, inventor of the first internet web browser and leading Silicon Valley tech venture capitalist, is quoted in a piece by Michael Barone in RealClearPolitics, taken from an interview with Free Press founder Bari Weiss. “My concern is that the censorship and political control of AI is a thousand times more dangerous than censorship and political control of social media – maybe a million times more dangerous. The thing with AI is, I think AI is going to be the control layer for everything in the future – how the health care system works, how the education system works, how the government works. So that if AI is woke, biased, censored, politically controlled, you are in a hyper-Orwellian, China-style, social credit system nightmare.” James G. Blaine is little remembered today, but in post-Civil War America he bestrode the American political landscape like a colossus. A U.S. Senator, Speaker of the House, Secretary of State, and Republican nominee for President, Blaine (derided by Democrats as the “continental liar from the State of Maine”) was one of those figures – like Daniel Webster or Henry Clay – who were more significant than many presidents. Blaine’s legacy lives on as eponymous “Blaine Amendments” – language in state constitutions that prohibits public funding for schools run by religious organizations. These are the children of Blaine’s proposed but failed U.S. constitutional amendment crafted when many Americans panicked about Irish and Italian immigrants, corrupting America with their “Romanism.” The blatantly anti-Catholic purpose of Blaine’s proposal came at a time when most public schools had an overtly Protestant bent. Blaine amendments are now in the constitutions of 37 states. They remain consequential, denying equal access to public funding for schools run by the Catholic Church and other religious organizations that meet state-mandated standards in English, science, math, and other core subjects. This is problematic for South Carolina, which recently passed the Education Savings Trust Fund Act, which would have allowed low-income families to use state-provided scholarships for private school tuition. But the South Carolina Constitution prohibits using public funds for the “direct benefit” of private educational institutions. The South Carolina Supreme Court was forced to strike down this school voucher program, dealing a harsh blow to families seeking educational freedom. That decision has left families scrambling to find alternatives after their financial support was cut off mid-school year. David Warner, a South Carolina father, described the ruling as “a kick in the stomach,” knowing he now has to tell his son in sixth grade he can no longer afford the school he loves. Sen. Tim Scott (R-SC), a vocal advocate for school choice, has called school choice the “civil rights issue of our time.” His words resonate with many South Carolina families who view school choice not just as an educational policy, but as a step toward opportunity and empowerment. For many, the local public school might not provide an environment for their children that allows for the transmission of their values. Many public schools are often not even safe. The Protect The 1st Foundation in our amicus brief explained the civil rights principles at stake in this program before the South Carolina Supreme Court. Our brief told the court that the scholarship program “promotes the exercise of First Amendment-protected religious and speech rights by enabling families who could not otherwise afford to do so to choose among a wide variety of schools and find those that align with their own varied beliefs and values … “It is no surprise, then,” Protect The 1st explained, “that the data show that school choice programs like the one challenged here lead to higher graduation rates, better test scores, and greater civic engagement – not only for students who receive scholarships through the program, but also for students who choose to remain in public schools.” If this sounds improbable, consider the research of Alexander William Salter, an economics professor at Texas Tech University. Salter reports that out of 28 studies that explore the link between school choice and district-school outcomes, “25 found that school choice improves educational attainment in traditional school systems. In terms of social-scientific validity, that’s a slam-dunk.” For now, the South Carolina court’s decision closes the door on a program that gave 5,000 students a chance to explore other educational opportunities. Yet, while the court acknowledged there is public demand for school choice, it also pointed out that any change must come from amending the state constitution. South Carolina has amended its constitution 100 times since 1974, including twice in 2022. But even if the Palmetto State removes its Blaine Amendment and opens the way forward for needy children to get a quality education, there will be 36 other states in which quality schools that meet state standards are officially discriminated against. Congress can resolve this matter by overriding Blaine Amendments, enshrining recent U.S. Supreme Court opinions (Espinoza v. Montana and Carson v. Makin) into national law. That ought to be issue one for Speaker Mike Johnson, the new Senate Majority Leader John Thune, and Education Secretary nominee Linda McMahon. Mendham Methodist Church v. Morris County, New Jersey A recent federal court ruling in New Jersey finds, once again, in favor of the free exercise of religion, inspiring us to ask the question: Why are state and local governments so perversely keen to ignore the Constitution and governing precedents? Morris County, New Jersey – like many jurisdictions – runs a historic preservation grant program. For 14 years (2003 – 2017), buildings of a religious nature were eligible for funding. Then, in 2018, the New Jersey Supreme Court found in Freedom from Religion Foundation v. Morris County Bd. of Chosen Freeholders that the state constitution’s Religious Aid Clause “bars the use of taxpayer funds to repair and restore churches.” At the same time, the court held that the rule did not violate the Free Exercise Clause of the Constitution because, in their estimation, the then-recent case of Trinity Lutheran Church of Columbia, Inc. v. Comer distinguished between religious status and religious use. In other words, the court said that government funding could go to a religious organization so long as the recipient was not using the money for religious purposes. Since then, Supreme Court precedent has evolved quite a bit. In Espinoza v. Montana Department of Revenue and Carson v. Makin, the Court flatly found that “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” That didn’t stop Morris County from denying Mendham Methodist Church and Zion Lutheran Church Long Valley historic preservation grants. Now, after the two churches brought suit, a federal court has ruled in their favor, citing (unsurprisingly) Espinoza and Carson. In the opinion by Judge Evelyn Padin, which invokes similar controversies in other states, she eloquently makes the point that: “Recent Supreme Court precedent, therefore, characterizes many states’ disentanglement of government and religion as a Faustian bargain: to gain public benefits, you must forgo your faith. But the bargain depends on the bargainer. So, too, could the calculus read: to benefit from the results of public funding, you must endorse a faith to which you do not belong.” That faith, it is implied, may be of the secular variety. But Espinoza and Carson make this whole calculus surprisingly clear. You cannot discriminate or withhold public funds based on an organization’s religious character. The only question that remains – will some states and local governments now follow the law? What is art? Is D.H. Lawrence’s 1928 novel, Lady Chatterley’s Lover, art? The U.S. Post Office didn’t think so, restricting uncensored versions of it until 1959. Are Jackson Pollock’s messy canvases art, or splattered paint? What about Police Academy 5? Britannica defines art succinctly as “a visual object or experience consciously created through an expression of skill or imagination.” This is an appropriately broad definition, one that leads to the logical conclusion that any restriction on art would be a restriction on speech, forbidden by the First Amendment. Acclaimed art historian and BBC star Sister Wendy Beckett reminds us that as patrons, we are co-creators of the art we view. Sister Beckett said that we should “advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.” Which brings us to the pastry and mountain mural painted by high school students in Conway, New Hampshire, above Leavitt’s Country Bakery. It will never be mistaken for Michelangelo’s Sistine Chapel, or even the wall art of your average Italian restaurant in Hackensack, New Jersey. But the mural’s assortment of doughnuts, muffins, and scones in front of a rising sun do a passable job of imitating the contours of the nearby White Mountains. The rub is that the citizens of that town overwhelmingly voted to restrict the size of billboards and signs. Leavitt Country Bakery’s mural is four times larger than the municipal ordinance allows, though we note that it inoffensively fits snugly within the boundaries of that establishment’s roof. When the city ordered Sean Young, the bakery’s owner, to take down the mural, he took them to court for violating his First Amendment rights. Will the city’s attorneys be able to poke holes in his argument? Sprinkle it with doubt? Or will the judge’s eyes glaze over and lead to an outright rejection of Young’s claim? A suggestion: Perhaps the citizens of Conway should set up a fund to fly Sister Wendy Beckett to New Hampshire and let her decide which side she would support as an expert witness. And give her a free doughnut. Freedom of speech, of course, comes immediately to mind. Then there is the other one, and the one after that, and then those other two… maybe the right to free home food delivery during the college playoffs? If you cannot remember them all, you’ve got lots of company. Consider Justice Amy Coney Barrett. On the high bench for four years, she has already made her mark as an incisive and independent thinker on the U.S. Supreme Court. Yet Barrett could only name four of the rights protected under the First Amendment while under the pressure of her nomination testimony. When asked to enumerate them by then-Sen. Ben Sasse, Barrett got a puzzled look on her face and asked, “What else am I missing?” Of course, this this was just a momentary lapse on the part of someone whose early career included clerking for Justice Antonin Scalia. Four out of five is for most people a pretty good score. The Annenberg Public Policy Center performed a survey in September that revealed that only one-third of Americans could name a majority of three of the five rights. Only 7 percent could name all five. So what are the five specific rights guaranteed under the First Amendment? And what are the percentages of Americans in Annenberg’s poll who got them right?
In her hearing, which one did then-Judge Barrett suffer a temporary memory lapse about? The last one, the right to petition the government for a redress of grievances. Annenberg’s poll also shows that less than two-thirds of Americans can name all three branches of government. These are, of course, igneous, metamorphic, and sedimentary. No wait, Moe, Larry, and Curly? The good, the bad, and the ugly maybe? Thank goodness for Wikipedia. Even better, let’s restore a solid civics education to American high schools. If virtually every American child can learn all the cartoon characters on Bluey, we can instill the basics of our constitutional order. SCOTUS to Consider Case on Apache’s Sacred Site on Friday The U.S. Supreme Court is set to consider reviewing Apache Stronghold v. United States on Friday. This is the last chance that the Apache have of preventing the utter destruction of land that to them is what Mount Sinai is for Jews and the Vatican is for Roman Catholics. The federal government recognized in 1852 what anthropologists and historians confirm: that a section of the Tonto National Forest, known as Oak Flat, has for centuries been the place where the Apache go to worship the Creator. That is why the government recognized the right of the Apache to worship at Oak Flat in a treaty ever since. As a result of a midnight deal in Congress, however, that land is being switched out with other public land elsewhere to which the Apache have no connection. A foreign mining company is set to dig a copper mine at Oak Flat that will be the length of the National Mall and as deep as two Washington Monuments. Luke Goodrich of the Becket Law Firm told the Ninth Circuit Court of Appeals that the destruction of a people’s religious site would certainly qualify as a substantial burden under any meaning of the Religious Freedom Reformation Act. After the first of two denials by that court to grant relief to the Apache, Judge Marsha Berzon in a fiery dissent called that ruling “absurd,” “illogical,” “disingenuous,” and “incoherent.” Ample precedent by this Court – from Little Sisters of the Poor to Hobby Lobby – ought to support the Court’s interest in this case. The current directive on Oak Flat threatens to impose one of the most drastic, and cruelest, burdens on religious practice in modern American history. That is why Protect The 1st has been joined by groups as diverse as the Jewish Coalition for Religious Liberty, The Church of Jesus Christ of Latter-Day Saints, and the Sikh Coalition in informing the courts of the danger of a negative ruling. We know that once the digging occurs, it will degrade the religious rights of all Americans. Protect The 1st urges the Court to take up this important religious liberty case. A new Maryland law regulating how energy companies describe their products as “green” or “renewable” raises significant First Amendment concerns. By restricting the language that companies can use to market their services, the law forces businesses to align with the state’s dictated views on sustainability. This case, now playing out in federal court, underscores the tension between government regulation and the constitutional right to free speech, even in the realm of commercial activity. Green Mountain Energy and the Retail Energy Advancement League (REAL) argue that this law crosses constitutional boundaries by going beyond regulating misleading claims. It forbids the use of “green energy” for the resale of “renewable energy credits.” By dictating the context for terms like “green” and “renewable,” Maryland is attempting to enforce its own perspective on sustainability with a legal mandate. The state offers no evidence that the companies’ descriptions of their products are deceptive. Instead, it seeks to impose its definitions, effectively punishing businesses for expressing a viewpoint that doesn’t align with Maryland’s preferred narrative. The state’s defense rests on the argument that this is "commercial speech," which has many exceptions from the broad protections of the First Amendment. Courts have long held that commercial speech can be regulated for truthfulness and safety. But applying that standard here is flawed reasoning. Commercial speech does not lose its constitutional safeguards simply because it involves business interests. Courts have repeatedly ruled that truthful and non-misleading commercial speech is protected. Maryland's law doesn’t regulate false advertising: it imposes civil penalties for truthful speech that doesn’t align with the state’s ideological preferences. This sets a dangerous precedent for governmental overreach. Consumers benefit from robust, diverse speech in the marketplace. Allowing companies like Green Mountain to share their perspective on what constitutes “green” energy fosters healthy competition and transparency. If Maryland’s law stands, it sends a chilling message that the government can censor private speech to promote its policy agenda. The First Amendment exists to prevent precisely this kind of state overreach. This case highlights a growing trend where governments seek to weaponize regulations to silence voices they don’t agree with. The Maryland law must be struck down to uphold the First Amendment's principles and ensure that businesses retain their right to speak freely. Of all the things Americans expressed thanks for last Thursday, Protect The 1st is so grateful for the First Amendment that we adopted it as our namesake. The First Amendment in the Bill of Rights is a simple guarantee of our constitutional right to speak freely, enshrined in our written constitution. It provides a bulwark against the encroaching tide of censorship that has eroded free expression in other countries. The importance of a written guarantee of free speech is demonstrated in the alarming decline of free speech in Anglophone countries, long seen as bastions of liberty, that lack such a constitutional guarantee. Recent examples from the United Kingdom, Canada, and Australia underscore the importance of this uniquely American right. The United Kingdom, the birthplace and champion of free speech, has increasingly succumbed to policing and punishing speech deemed offensive. Its 1986 Public Order Act made it a criminal offense to use “threatening, abusive, or insulting” words that might cause someone “harassment, alarm, or distress.” While the law’s language seems aimed at curbing harm, it effectively outlawed the mere act of offending someone. This led to absurd prosecutions, such as a man arrested for calling a police horse “gay” and a teenager detained for labeling Scientology a cult. These cases illustrate how the power to define “insult” can be wielded arbitrarily, stifling legitimate expression. More recently, the UK has seen the rise of "non-crime hate incidents," where individuals are investigated for actions or speech perceived as offensive but not criminal. These incidents are recorded by the police and can affect individuals’ records, impacting their job prospects and social standing. For example, Essex Police investigated journalist Allison Pearson in 2024 over a year-old social media post allegedly inciting racial hatred. Although no charges were filed, the investigation drew backlash and raised concerns about the chilling effect of such probes on free expression. Peaceful personal actions have also come under scrutiny. In 2024, Army veteran Adam Smith-Connor was convicted for silently praying outside an abortion clinic in Bournemouth. Despite the deeply personal nature of his prayer, he was ordered to pay significant prosecution costs. Similarly, Isabel Vaughan-Spruce was arrested in 2022 for silently praying near an abortion clinic in Birmingham, allegedly violating a local “buffer zone” order. Although she was later acquitted, her case sparked widespread concern over the criminalization of private thought and peaceful expression. Canada, too, has seen troubling encroachments on free speech. The country’s human rights commissions have famously prosecuted individuals for “hate speech” under laws that are broad and subjective. One high-profile example involved comedian Mike Ward, who faced years of legal battles and was fined for making a joke about a disabled public figure. Such cases illustrate how speech, particularly humor (admittedly offensive) and dissenting opinions, can be punished when legal protections are weak or absent. The mere existence of these tribunals demonstrates a willingness to prioritize “dignity” over free expression, a choice that would be untenable under the First Amendment. In Australia, free speech has also come under threat. In 2019, that country’s High Court upheld the dismissal of a public servant who criticized government policies anonymously on social media. The court ruled that such comments breached the Australian Public Service Code of Conduct, highlighting the limited protections for free speech, especially for government employees. These examples from countries that share the common law tradition reveal a stark contrast. Britian gave us foundational texts like John Milton’s Areopagitica, a powerful argument for the liberty of unlicensed printing. Canada, with its Charter of Rights and Freedoms, has nevertheless allowed subjective interpretations of “hate speech” to override open debate. Australia, lacking a constitutional free speech guarantee, has seen judicial decisions that limit public discourse. By comparison, the United States’ written Constitution, fortified by a judiciary that has generally stood firm in defense of free speech, has proven to be a fortress against these trends. Americans benefit from a legal framework that assumes offensive speech is not a bug but a feature of free expression. The U.S. Supreme Court has consistently upheld this principle, most notably in cases like Brandenburg v. Ohio, which protects even inflammatory speech unless it incites imminent lawless action. This robust protection enables a marketplace of ideas where good and bad arguments alike are subject to public scrutiny, not state suppression. The comedian Rowan Atkinson of Mr. Bean fame has eloquently defended free speech, calling it “the most precious thing in life.” He warned that outlawing insult empowers orthodoxy to silence dissent and argued that “more speech” is the strongest weapon against hateful ideas. As we eat the last of our Thanksgiving leftovers, let us give thanks for the First Amendment, which guards the liberty to speak, argue, and dissent without fear. It is a fortress that protects us all. The decision by the Texas State Board of Education to offer the optional Bluebonnet curriculum, rich in Christian imagery and tropes, is a kind of Rorschach test. Those more sensitive to the “no establishment” clause of the First Amendment see it as foisting one religion on an increasingly diverse population of students. Those who relish the “free exercise” clause see it as exposing all children to common cultural touchstones in what was until recently an overwhelmingly Christian nation. Religion has undeniably shaped American society, from the Puritans’ foundational settlements to the Great Awakening’s moral fervor and the influence of Presbyterianism on the structure of the U.S. Constitution. In the 19th and 20th centuries, churches played key roles in the abolitionist and civil rights movements. Including the lore of these movements in history classes enriches students’ understanding of the nation’s development and diverse social fabric. “In my view, these stories are on the education side and are establishing cultural literacy,” said Will Hickman, a Republican who sits on the Texas Board of Education told The Texas Tribune. He has a point. Common phrases like “pearls before swine,” “turn the other cheek,” and “salt of the earth,” are sayings of Jesus that have become cultural bywords in ordinary American conversation. More difficult questions arise when religious content goes beyond lessons about history and literature. One Bluebonnet lesson about fairness, for example, includes the story of The Good Samaritan, Jesus’ parable about helping people across barriers of background and religion. That story too is an important part of American moral culture. But some Jewish, Muslim, Sikh, and Hindu parents might see such moral parables not as helping everyone share a common culture, but as an effort by conservative Christians to keep Christianity at the center of American identity. It’s the kind of issue that deserves to be discussed among all concerned stakeholders, at the local level, with people on all sides doing their best to understand others’ concerns and to develop approaches that are as inclusive as possible and that avoid unnecessary offense to their neighbors’ sensibilities. Wherever one comes down in that debate, one inclusive, and therefore laudable, approach to religious expression is to expand school choice, which Texas is ready to embrace. Following the recent election, the Texas legislature now has a majority prepared to implement a universal school voucher program for the nation’s second most populous state. Such a program would give parents the freedom to select schools that align with their values, whether they seek religious or secular instruction. Gov. Greg Abbott is championing this initiative, recognizing the growing demand for educational options. The foundation for this shift was laid by the U.S. Supreme Court’s 2022 decision in Carson v. Makin. The Court ruled that if a state offers funding to private secular schools, it cannot exclude religious schools. This principle ensures families can choose schools – religious or secular – that best meet their needs. In Texas, vouchers will allow children to attend quality private schools as long as they meet state standards in core subjects like science, civics, and math. Religious schools, unlike public institutions, can easily integrate faith-based teachings into their curricula. Without generating internal controversy, for example, they may display and teach such things as the Ten Commandments as part of their broader mission. Far from undermining pluralism, this model respects it, allowing families to pursue education aligned with their beliefs while maintaining accountability to state standards in key subjects. This seems to us the better way to respect both diversity and the maximum freedom of expression under the First Amendment, and in so doing allowing parents to share their values – religious or not – across generations. President-elect Donald Trump’s nominee for Chairman of the Federal Communications Commission promises he will “smash the censorship cartel.” A current FCC commissioner, Brendan Carr is a seasoned policymaker and scholar of communication law. He is an unabashed promoter of the free market, promising to reduce regulation and “refill America’s spectrum pipeline” to “unleash economic prosperity.” Carr authored the FCC section of Project 2025, which encapsulates what the FCC’s policy efforts are likely to encompass in the coming years. Relevant to the First Amendment is Carr’s approach to Section 230. This is the law that grants social media companies immunity from liability for content produced by third parties, while acknowledging the companies’ right to moderate their sites. Carr believes Section 230 has been expanded and abused to censor conservative and other speech, concluding it “is hard to imagine another industry in which a greater gap exists between power and accountability.” That’s why, in his view, the “FCC should issue an order that interprets Section 230 in a way that eliminates the expansive, non-textual immunities that courts have read into the statute.” Specifically, Carr suggests that the “FCC can clarify that Section 230(c)(1) does not apply broadly to every decision that a platform makes. Rather its protections apply only when a platform does not remove information provided by someone else. In contrast, the FCC should clarify that the more limited Section 230(c)(2) protections apply to any covered platform’s decision to restrict access to material provided by someone else.” What this means, in effect, will be much less immunity for platforms under Section 230(c)(1), broadly interpreted by courts to apply to both distribution and takedown decisions – even though Section 230(c)(2) speaks more directly to the latter. Carr’s proposal is a direct shot at the kind of censorship decisions that have so enflamed conservative circles in recent years, and it means platforms could have substantially less legal protection in such future cases. At the same time, basic publishing and editorial functions (even a hands-off editorial approach), as well as removal of lewd or violent material would likely remain covered under this framework. (For more on the distinction between Section 230(c)(1) and Section 230(c)(2)), we recommend this Congressional Research Service report.) Carr’s writings make frequent appeals to Congress to reform and update the laws governing the internet, eager to work with Congress to harmonize his regulatory approach with the law. Given the role of courts in interpreting rules against the statutes they are based upon, it is hard, however, to predict what this new framework will look like. There’s certainly a scenario where litigation against tech platforms could snowball in a way that harms innovation, consumer experience, and the overall speech climate. Moreover, the First Amendment upholds the right of social media companies to moderate their content. Courts should not allow any rule that compromises their rights. Still, Carr’s effort to carve out more respect for speech by reinterpreting Section 230 is a lighter touch than many legislative proposals. Carr suggests placing transparency rules on big social media platforms – specifically, requiring “platforms to provide greater specificity regarding their terms of service.” We would prefer social media companies to voluntarily take up these rules. Platforms’ moderation decisions should take place in the open, providing clarity to consumers and furthering free expression and association on the handful of sites that have become the nation’s townhall. Carr also advocates for returning “to Internet users the power to control their online experiences,” perhaps through choosing “their own content filters and fact checkers, if any.” At the same time, he concedes that such policies could be seen by some as intruding “on the First Amendment rights of corporations to exclude content from their private platforms.” Carr should heed his reservation. Protect The 1st wholeheartedly supports the speech rights of private companies and opposes external impositions on this fundamental right. Regarding national security, Carr wholeheartedly supports a ban on TikTok, espousing that it provides “Beijing with an opportunity to run a foreign influence campaign by determining the news and information that the app feeds to millions of Americans.” We support the law that requires divestment by China’s ByteDance. With a sale to a U.S. owner, there would be no need for a blanket ban on TikTok that infringes on the speech and associational rights of Americans. Lastly, Carr seeks to re-emphasize the establishment of wireless connectivity for all Americans by freeing up more spectrum and streamlining the permitting process for wireless builds. According to the FCC, 24 million Americans still lack high-speed Internet as of 2024, and that’s 24 million Americans who are less able to exercise their speech rights than their fellow countrymen. Overall, Carr’s focus is to modernize the FCC and promote prosperity by turning to a “pro-growth agenda” over the heavy hand of regulatory decree. “The FCC is a New Deal-era agency,” Carr writes. “Its history of regulation tends to reflect the view that the federal government should impose heavy-handed regulation rather than relying on competition and market forces to produce optimal outcomes.” In short, Brendan Carr promises to be a bold leader at the FCC who aims to break policy logjams. Protect The 1st looks forward to evaluating his proposals when they are fleshed out in January. President Trump’s appointment of Linda McMahon as U.S. Secretary of Education sends a single and unmistakable signal – this incoming administration will prioritize the expansion of school choice, and associated parental rights, across the country. Opponents of McMahon’s appointment have already called her credentials into question, pointing to her tenure as CEO of World Wrestling Entertainment as too undignified for a Cabinet secretary, disqualifying for any role that does not involve pointed elbow drops or figure-four leglocks. McMahon’s defenders cite her business acumen – building WWE into a multibillion-dollar powerhouse – as a demonstration that she is a manager and a leader. What the oppositional hand-wringing actually boils down to is a fundamental policy disagreement between the educational establishment and the prospective new leader of the Department of Education. McMahon is an outspoken proponent of parental school choice, having co-founded the America First Policy Institute, in part, to advocate for “putting parents and students – not bureaucrats, unions, or politicians – in charge of educating our Nation’s next generation.” As Protect The 1st has often pointed out, parents’ ability to choose how to educate their children is a fundamental First Amendment right, because it determines whether and to what extent parents will be able to extend their values (including those based on religion or belief) across generations. Parents should be able to freely choose a school that fits their child’s needs and to select an education that reflects their values. It's an overdue blessing, therefore, that support for school choice is on the upswing. Today, according to EdChoice, there are 75 school choice programs operating across 33 states. A full quarter of the states have embraced some form of universal school choice. And in 2023, support for school choice reached 71 percent among voters, with strong majority backing across all political parties and demographics. Conversely, a 2024 Pew Research study shows that more than one-half of Americans say that traditional, public K-12 education is heading in the wrong direction. With McMahon at the helm of the Department of Education against the backdrop of a GOP-led Congress, chances are better than ever that we’ll see passage of the Educational Choice for Children Act. This measure would provide tax credits for charitable contributions to organizations offering school choice scholarships. In the meantime, we’re increasingly likely to see the nation’s second-largest state, Texas, join the broadening coalition fighting for the future of our children. In 2023, 21 Republicans joined 63 Democrats to vote down education savings accounts, a top priority for Gov. Greg Abbott. In 2025, 14 of those members are not returning to Austin, giving the governor an education choice majority in both chambers of the state legislature. Again, it cannot be emphasized enough that school choice is broadly supported among voters of both parties. November’s GOP sweep likely resulted in some part from the disconnect between Democrats and their constituents over our failing public education system. Democrats, simply put, need to listen to their core constituents, upset about public schools that have failed children for decades. Until Democrats wake up – and PT1st hopes they will – the task of reform is left to elected conservatives. Regardless of party, we need political leaders who understand that the quality education and values we bequeath to our children are among the most important expressions of our core beliefs. McMahon’s nomination is nothing less than a “People’s Elbow” in favor of that proposition. President-Elect Trump: Please Consider Catherine Herridge’s Offer of a Sit-Down on the PRESS Act11/23/2024
Award-winning journalist Catherine Herridge, who is being pressed by a federal judge to reveal her source for an investigative journalism series, has a lot on her plate.
She is walking the marbled halls of the U.S. Senate advocating passage of a bill, the PRESS Act, that would protect journalists and their sources. She is doing this while also facing the possibility of an $800 a day fine and jail time for not revealing the source behind her series of stories for Fox News in 2017. Now Herridge is asking President-elect Trump to hear her out on why Senate passage of the PRESS Act is so important to independent, non-mainstream journalists who were so prominent in the last election. This new, rising sector of independent journalists, lacking the deep pockets of a newspaper or a network, are particularly vulnerable to government harassment. They are perhaps the most in need of a limited right to refuse demands from government prosecutors to reveal their sources. Here’s what Herridge told NewsNation: Following California’s lead, Michigan lawmakers are advancing legislation targeting election misinformation. It is a bill that is perhaps well-intentioned but nevertheless fatally flawed in its details. Senate Bill 707 would impose a fine of up to $1,000 on any individual who “knowingly makes a false statement or misrepresentation” to another regarding: the time, place, or manner of an election, the qualifications for or restrictions on voter eligibility, criminal penalties associated with voting in an election, or an individual’s voter registration status or eligibility. Any entity or organization that employs, for an election related purpose, someone guilty of violating these provisions must prove a lack of prior knowledge or be fined up to $10,000. Constitutional problems about speech abound with this one, as well as a myriad of process issues that would make enforcement difficult at best. Like it or not, lies are largely constitutionally protected. To the extent they are not, legal remedies like libel and perjury already exist. In New York Times v. Sullivan (1964), the U.S. Supreme Court held that even deliberate lies about the government are constitutionally protected. Even if we started punishing deliberate election-related falsehoods, questions will always persist about whether or not such falsehoods constitute jokes, parody, or satire. Which brings us to the logistical problems at issue here. The bill defines the infraction at issue as requiring “the intent to impede or prevent another individual from exercising the individual’s right to vote in an election.” But proving intent around election adjacent representations is exceedingly difficult – and SB 707 fails to offer up a standard of proof for use in these situations (like, for example, clear and convincing evidence). Moreover, the bill would put the burden of proof on the accused, hitting them with a requirement that one must prove a negative – that they had a lack of prior knowledge. Precedent is all over the place on this issue. Legal scholar and PT1st Senior Advisor Eugene Volokh writes there appears be “some room” under United States v. Alvarez (2012) for narrow restrictions on lies regarding the “how, where, and when to vote.” Yet, in California, a very similar law to the one at issue here was recently enjoined by a United States federal court. Another case out of Massachusetts might also provide some guidance. In Commonwealth v. Lucas (2015), the majority opinion noted that statutes punishing election-related falsehoods “may be manipulated easily into a tool for subverting its own justification, i.e., the fairness and freedom of the electoral process, through the chilling of core political speech.” And therein lies our biggest concern. Even an unsuccessful case brought under this statute could still be used to throttle targeted political speech. No matter the outcome of a trial, the costs and risks of defending oneself in court is a punishment in itself. We recognize the importance of protecting electoral integrity – and the increasing difficulty of doing so in this digital era. But the best, most constitutionally sound remedy against false speech is the same as the old one: counter-speech. Local authorities should always be at the ready to counter misleading statements about elections with a social media bullhorn. After extensive analyses of the recent election, let us suggest one more driver behind the dismal performance of Vice President Kamala Harris and the Democrats – their adamant refusal to listen to their constituents about school choice. We’ve long appealed to Democratic politicians to be brave on school choice. For example, when Govs. Josh Shapiro of Pennsylvania and J.B. Pritzker of Illinois entertained modest tax breaks for school choice for needy children, they withdrew their support after being cuffed about the ears by the public teachers’ union. How much longer can public unions bully elected officials to ignore the appeals of parents for more choice in education, especially from demographic groups long considered dependable Democratic voters? As the late economist Herb Stein said: If something cannot go on forever, it will stop. Consider: Polling data from RealClear Opinion Research underscores that the growing bipartisan support for school choice crosses all demographic and political boundaries. In 2023, support for school choice reached 71 percent among voters, with strong backing from Democrats, Republicans, and Independents alike. Minority support is especially pronounced: 73 percent of Black voters and 71 percent of Hispanic voters favor school choice. This surge in interest, especially among minority voters, likely contributed to a stronger minority turnout for Donald Trump, who has long championed school choice as a civil rights issue. Did Kamala Harris hurt herself by stiff-arming these voters who want better opportunities for their children? The appeal of school choice lies in the frustrations many families feel toward public education systems that have struggled, especially in low-income and minority communities. Some public-school districts serving minority communities have a half-century record of graduating one class of students after another who are largely unprepared for success in adult life. The legacy of underperformance in these schools has led many minority voters to demand alternatives, including charter schools and vouchers, that offer a more personalized approach to education. Protect The 1st advocates for these policies because they fulfill the ability of parents to exercise the First Amendment by extending their values to the next generation. It is no mystery why school choice is sweeping the nation. One-quarter of the states have embraced some form of universal school choice. Texas is about to be next after the recent election added a solid majority to pass Gov. Greg Abbott’s school choice plan next year. The political landscape is shifting, and not just in red states. As long as Democrats consistently buckle to pressure from the government teachers union, they risk alienating a growing segment of an eroding voter base. We urge elected Democrats to bravely reject political pressure from a special interest group. School choice is too important to be anything less than a bipartisan cause. An extreme measure that would give future U.S. Treasury Secretaries unprecedented authority to shut down non-profit, advocacy organizations remains a live option in Congress. The “Stop Terror-Financing and Tax Penalties on American Hostages Act,” HR 9495, failed to pass the House last week. But it maintains momentum due to a little sweetener that is widely popular – a commendable side measure to offer tax relief to Americans held hostage in foreign countries. The main part of the bill would grant future U.S. Treasury Secretaries power to use secret surveillance to declare a tax-exempt, non-profit advocacy organization a supporter of foreign terrorism, and shut it down. This provision, in essence, does one thing – it removes due process from existing law that allows the government to crack down on supporters of terrorist organizations. CRS reports that the IRS is already empowered to revoke the tax-exempt status of charitable organizations that provide material support to terrorist organizations, a power it has used. But current law also requires IRS to conduct a painstaking examination of the charge before issuing a revocation. It gives groups the ability to answer charges and to appeal decisions. But the “Stop Terror-Financing” bill would give targeted organizations a 90-day window to challenge the designation, while giving them no access to the underlying evidence behind the determination. An organization could challenge the designation in court but might not be able to access the charges against it due to the state secrets doctrine. In the meantime, being designated a terrorist-affiliate would be a death penalty for any organization and its ability to attract donors. “The entire process is run at the sole discretion of the Secretary of the Treasury,” Kia Hamadanchy of the American Civil Liberties Union told the media. “So you could have your nonprofit status revoked before you ever have a chance to have a hearing.” The latest attempt to pass this measure failed to reach a two-thirds majority needed to pass, with 144 Democrats and one Republican voting against it. Democrats were buoyed by a Who’s Who of liberal organizations, ranging from the ACLU to Planned Parenthood and the Brennan Center for Justice, that denounced the bill. Not surprisingly, pro-Palestinian groups were united in opposition as well. But Republicans and conservatives would be well advised to consider the principled opposition to the bill by Rep. Thomas Massie (R-Ky). He surely appreciates that this power, once created, could be used by future administrations against nonprofits of all sorts. Could a conservative organization be targeted as a supporter of terrorism for advocating, for example, a settlement with Russia (certainly a state sponsor of terror) in its war against Ukraine? Conservative principles and an adherence to the Constitution should begin with the notion that the government should not have the unilateral right to shut down the speech of advocacy organizations on the basis of secret evidence from surveillance, even if you despise what they advocate. Conservatives would also be well-advised to consider not how this law would be used in the near future, but by future administrations. Have they forgotten Lois Lerner and the attempt to use tax law to shut down conservative advocacy groups? “We don’t need to worry about alien terrorists,” Lerner wrote in an email justifying her actions against right-leaning organizations. “It’s our own crazies that will take us down.” Conservatives should be wary. This bill creates a weapon that can be aimed in any direction. John Oliver implores the Senate to pass the PRESS Act! It's already passed the House unanimously.
It would protect journalists across the political spectrum from spying and the threat of jail time for doing their jobs. A FEMA official in Florida overseeing damage assessments in the wake of Hurricane Milton reportedly instructed workers to avoid homes displaying Trump signs. Screenshots provided to The Daily Wire shows that FEMA volunteers tasked with visiting sites impacted by the storm – and informing residents of government benefits – bypassed homes because they displayed Trump campaign signs. According to screenshots of an internal FEMA chat, the supervisor in question stated that it would be “best practice” to “avoid homes advertising Trump.” At least one worker filed a whistleblower complaint, and FEMA has subsequently terminated the official responsible for the guidance. These actions of a federal agency in Florida present a clear case study on the First Amendment’s “viewpoint neutrality” mandate, which prohibits the federal government from discriminating based on private speech. It also reaffirms the limits of the speech rights of federal employees, who may engage in political speech in their private capacities – but not in the course of their official duties… and certainly not in the context of critical disaster recovery efforts. Should the Florida supervisor contest the termination, she might bring up the wild theories from some influencers that circulated in the wake of Hurricane Helene, another terrible storm that rocked the southeast just prior to Milton. In mid-October, a single armed man – potentially ginned up by conspiracy theories – was arrested in North Carolina for making threats against FEMA. There is still no rational argument that avoiding Trump-supporting households in Florida – part of a 74 million-vote majority – is a narrowly tailored solution aimed at achieving a compelling government interest. This story does not negate the good work FEMA has done in the wake of recent disasters, but it should serve as an instructive lesson to government employees tasked with upholding the Constitution. You probably had the same reaction we did to the story late last week that someone had sent racist text messages to the phones of African-Americans in at least 19 states: We hope they find the SOB. Identifying the troll who blasted out text messages to thousands of Americans telling them to be ready to “pick cotton” would be satisfying. The troll could expect public shaming, likely loss of employment, business boycotts, social ostracism, as well as civil lawsuits. Many of the victims of this text attack did not understand that this was a mass event, not specifically aimed at them. Some were children. The texts caused some to understandably fear for their personal safety. So this was not an ugly prank. It was an attack on Americans’ sense of well-being. All true. But was the message itself a crime? Probably not. In a landmark decision, Brandenburg v. Ohio, the U.S. Supreme Court in 1969 found that the speech of the Klu Klux Klan, as odious as it was, could not be outlawed. The Court found that only speech that is “directed at inciting or producing imminent lawless action” could be deemed illegal. Otherwise, the First Amendment protects hate speech. In every report of the text message we’ve read, there was no imminent threat of lawless action. And yet this text message managed to insult many Americans to the core and disturb the psyche of the nation. This attack – and others that are sure to follow – force us to ask if the Brandenburg standard needs revision. After all, the numbers of Americans exposed to the Klan’s ugly rhetoric in a park in Ohio was tiny. With the reach of digital technology, this message slapped thousands of Americans in the face. Amplified by social and traditional media, it then reached most Americans. Thus, digital technology takes the speech of the marginal and the weird and gives it a national bullhorn. Critics of the Brandenburg standard argue that if you demonize a racial or religious group before millions of people, you might egg on a few unstable individuals to commit acts of violence. This is not a theoretical concern. Consider the hate behind the slaughter that occurred at the Tree of Life Synagogue in Pittsburgh in 2018, or the killing of 10 Black customers at a Buffalo grocery store in 2023. The killer, at his sentencing, expressed remorse and said: “I believed what I read online and acted out of hate.” Defenders of the Brandenburg standard point out that other countries that have hate laws have widened the circle of forbidden speech to an absurd extent. Governments have prosecuted people for soberly criticizing religious dogmas as narrow-minded. Others have prosecuted people for expressing traditional beliefs on sexual behavior advocated by all the world’s major religions. As a First Amendment organization, we take a maximalist position on speech – holding that the antidote to bad speech is more speech. But we also acknowledge that digital amplification raises new questions about heightened risks. So far, we have more questions and concerns than answers. We invite you to follow us as we explore the tension between speech and safety more deeply in the coming year. Can we admit now that building out large bureaucracies in college administrations to investigate and punish speech crimes was a mistake? A few decades ago, purported ugly behavior by an undergraduate was a matter policed by the Dean of Students. Those who behaved in an uncivil manner were called in by the dean for a “little talk.” Guided by common sense and wisdom, and depending on the seriousness of the matter, the dean might talk through a student’s emotional problem, issue an admonishment, or with reluctance turn to the possibility of suspension or even expulsion. But students accused of speech infractions today don’t face the Dean of Students. They face long, legalistic investigations, often with their future at stake. Consider Pace University in New York, where Houston Porter, 28, is facing a sex-based discrimination probe. He is accused of “aggressively pointing” at a transgender student and misgendering her during a recent panel about “Saving Women’s Sports.” The panel grew progressively heated as discussants debated the impact of New York’s Proposition 1 ballot measure. This measure codifies gender identity in state law. The panel, which included a constitutional lawyer and two state senate candidates, discussed if such a new law would force women’s sports teams to accept biological men. When the panel opened for questions, the event erupted into chaos. “There were a bunch of people in my face,” Porter told The New York Post. “I felt like I was getting swarmed.” He strenuously denies that he addressed an individual by the wrong pronoun and did not make any gestures toward anyone. A dean of old might have left the matter at that. But Pace is conducting a lengthy investigation of Porter under Title IX, a law prohibiting sex-based discrimination at any educational institution that receives federal funding. Porter, a third-year law student, could now face expulsion or be suspended from practicing law altogether. Even a disciplinary action against him could have lifelong consequences since the bar exam requires applicants to disclose disciplinary actions they have faced. “Any type of punishment will be super-detrimental to my reputation and to my professional career,” Porter told The Post. “It feels like my whole world is crumbling down. I feel like everything that I’ve been working toward might be destroyed over a misunderstanding.” Let’s be clear. Members of sexual minorities, on college campuses and elsewhere, are sometimes discriminated against and physically assaulted. College administrations have a moral as well as a legal obligation to protect all their students from harassment and assault. No one, however, is alleging that Porter did anything except point at someone and use the wrong pronoun – which again, he strongly denies. What is there is for Pace to investigate? Yet university bureaucracies, fearful of Title IX and the U.S. Department of Education, turn even trivial incidents like these into lengthy inquisitions, often concluding with an auto-da-fé. Curiously, it is usually those on the right side of these issues – like Porter, a member of the conservative Federalist Society – who get keelhauled. Did anyone swarming or verbally attacking Porter use foul or “aggressive” language? Did anyone else point a finger? Or worse? The overreaction of universities would be laughable if the consequences weren’t so gravely serious for victims and chilling for speech. The mix of official intimidation, sanctioned and protected harassment, and self-righteous ostracism brings to mind the worst abuses of the McCarthy era. It is time to slim down the resources and authorities of these overweening campus bureaucracies and make it clear that Title IX exists to address serious discrimination, not purported (and in this case, literal) finger-pointing. Ever thought you had cancelled a subscription to a publication or an app only to find it has been renewed for another year on your credit card account? This is one of the most common problems reported to the Federal Trade Commission. In response, the agency recently announced a “click-to-cancel” rule for subscriptions, gym memberships, and associations. We think that’s good news. Now why doesn’t the FTC, or the Labor Department, extend this logic to make it just as easy for a worker to resign from a labor union? Unlike an angry consumers’ right to cancel The Washington Post, when a worker is forced to remain in a union, she has to pay dues to subsidize union political speech that she may disagree with. This is what happened to Kristine Kirk who attempted to resign from the Los Rios Classified Employees Association, a union for employees of a community college district in California. Or consider the 21 lifeguards, also in California, who wanted to resign as dues-paying members of a public-employee union but couldn’t. FTC Chair Lina Khan said that some businesses require consumers to go through “endless hoops” to end their subscriptions. That’s nothing compared to the California lifeguards, who were told that they could only resign their union membership during a single thirty-day period every four years. This is typical of attempts at resignation that are blocked by such dilatory tactics and state “maintenance-of-membership” statutes. The most egregious aspect of this compelled union membership is that it violates American workers’ First Amendment right not to pay for political speech that they may vigorously disagree with. This at the heart of a similar lawsuit by attorney Daniel Crowe, who is suing to be released from having to pay dues to the Oregon Bar Association, which prints magazine articles and makes statements with a partisan slant. Isn’t the First Amendment important enough to allow these members to resign their union or association membership with one click? The FTC itself is now a union shop. FTC staff just voted to join the National Treasury Employees Union. Can they resign or are they all captive dues-payers for union speech for now on? How about it, FTC? There’s no denying that the U.S. Fifth Circuit Court of Appeals, which covers Louisiana, Mississippi, and Texas, has a maverick streak. Earlier this year, the court ruled that geofence warrants of cellphone data of suspects and innocents alike are inherently unconstitutional. Law enforcement, which routinely collects such data from the scene of a crime or around a suspect, found its practices upended. And now… oops, they did it again. This week, the Fifth Circuit invalidated settled IRS regulations in a way that is certain to upend speech protections under the law, at least in states under the Fifth Circuit’s purview. The court’s unanimous three-judge panel ruling on a healthcare organization’s tax exemption opens up for revision IRS regulations on 501 (c) (4) “social welfare organization’s” right to engage in political speech. This ruling concerns the current regulation stipulating that these groups can engage in political activities if 51 percent of their funds are spent on approved activities, like public education. Political activity – including ads and social media campaigns – are allowed if they account for no more than 49 percent of the group’s spending. The Fifth Circuit ruled that 501 (c) (4)s can now no longer qualify for tax exemptions if their political activity is at a level that is judged “substantial.” As a result of the Fifth’s ruling it is anyone’s guess how other courts and the IRS will come to define the “substantial” standard for 501 (c) (4) organizations. If spending 49 percent of an organization’s time and money on political activity is substantial, how about 39 percent? Would 29 percent be too much? Five percent? Critics of the 49 percent rule have long argued that it allows donors to pass so-called “dark money” through tax exempt educational organizations to fund political ads for and against candidates. This criticism sharpened in the aftermath of the U.S. Supreme Court’s Citizens United decision in 2010 that held that private groups unaffiliated with political campaigns are not limited by the donation limits set by law and enforced by the Federal Election Commission. The Supreme Court found that limiting what someone can spend on their opinions about the issues and candidates of the day is a limit on speech itself. Protect The 1st agrees and defends Citizens United as a cornerstone of the First Amendment’s protection of speech. Undoing that standard would subject all political speech in America to bureaucratic regulation and parsing. A possible collateral casualty of the Fifth’s ruling is donor privacy. The Supreme Court unanimously ruled in NAACP v. Alabama in 1958 that organizations have a right to withhold the identities of their donors. In this age of doxing and political retaliation against individuals and their businesses, the wisdom of NAACP seems greater than ever. The Fifth’s decision to open the rule to revision will almost certainly lead to efforts to force the disclosure of donors to 501 (c) (4) organizations. This opening has not exactly gone unnoticed. One advocate for donor disclosure told The Wall Street Journal that donors should be revealed if the tax law was “interpreted the way that we believe it should be.” In the interest of full disclosure, Protect The 1st is organized as a 501 (c) (4), and we use our status to advocate for the PRESS Act, which protects the notes and sources of journalists from compelled exposure, as well as other important First Amendment causes, from donor privacy to the free exercise of religion. For our part, we believe that under all circumstances Americans have the right to freely associate and advocate for their opinions. Full stop. That is what the founders had in mind when they wrote and passed the First Amendment. |
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